Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF WAYNE THOMAS BLACK
|- and -
|THE SECRETARY OF STATE FOR JUSTICE
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Parishil Patel (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 14 May, 28 June 2007
Crown Copyright ©
Kenneth Parker QC :
The factual background
The course of the proceedings
(1) An order quashing the SSHD's decision dated 29 August 2006;
(2) A declaration that it is unlawful for the SSHD to reject the advice of the Parole Board in respect of the release of prisoners serving determinate sentences;
(3) A declaration that he is entitled to immediate release in accordance with the recommendation made by the Parole Board on 2 May 2006.
The domestic legislative background
"33. When, in October 2002, the Secretary of State rejected the Parole Board's recommendation that Mr Clift be released on parole, discretionary lifers and HMP detainees had already been brought within the definitive jurisdiction of the Parole Board, and Stafford v United Kingdom (2002) 35 EHRR 1121, requiring the same procedure for mandatory lifers, had already been decided. The differential treatment of prisoners serving 15 years or more had, in my opinion, become an anomaly. That would not, in itself, be a ground for holding it to be unjustified. Anomalies are commonplace. But by 2002 it had, in my opinion, become an indefensible anomaly because it had by then come to be recognised that assessment of the risk presented by any individual prisoner, in the application of publicly promulgated criteria, was a task with no political content and one to which the Secretary of State could not (and did not claim to) bring any superior expertise. I would accordingly resolve this issue in favour of Mr Clift and against the Secretary of State."
"68. ……It follows that only those in Mr Clift's position, a substantial but obviously dwindling number of 15 year or longer determinate sentence prisoners sentenced for offences committed before 4 April 2005, will continue to have their release dates determined by the Secretary of State.. Not only, therefore, are they now to be contrasted with lesser determinate sentence prisoners and all life sentence prisoners but they are to be contrasted too with all those whose offences were committed after 4 April 2005. Such discrimination in their cases is plainly unjustifiable (although not actually unlawful because, as stated, they do not have the "status" to complain under article 14) and it is difficult to see why the Secretary of State would wish to perpetuate it.
"69. I add only this. Under the 2003 Act the Secretary of State has surrendered his discretion (save in respect of 135 days) with regard to all determinate sentence prisoners whose offences were committed after 4 April 2005, ie those subject to removal no less than nationals. The anomaly in the case of Mr Hindawi and Mr Headley, therefore, has similarly become more plainly indefensible. Given that the House is now to declare the legislation which still affects these two appellants to be incompatible with their Convention rights, the Secretary of State will surely wish to consider whether the time has not now come to leave all future decisions as to release on licence (fewer, of course, under the 2003 Act than in the past) exclusively to the Parole Board."
The claimant's case
The first submission: the direct application of article 5(4)
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful".
"25. The general rule is that detention in accordance with a determinate sentence imposed by a court is justified under article 5(1)(a), without the need for further reviews of detention under article 5(4); David Feldman, Civil Liberties and Human Rights in England and Wales, 2nd ed (2002), p 446. Article 5(1)(a) is concerned with the question whether detention is permissible. Its object and purpose is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion, and its provisions call for a narrow interpretation: Winterwerp v The Netherlands (1979) 2 EHRR 387,402, para 37. The conviction does not have to be lawful in order to satisfy this requirement, but the detention must be. This means (i) that it must be lawful under domestic law, (ii) that it must conform to the general requirements of the Convention as to the quality of the law in question – its accessibility and the precision with which it is formulated and (iii) that it must not be arbitrary because, for example, it was resorted to in bad faith or was not proportionate: see R v Governor of Brockhill Prison, ex p Evans (No 2)  2 AC 19, 38E; Mcleod v United Kingdom (72/1997/865/1065), para 41. Detention in accordance with a lawful sentence of imprisonment imposed by a judge on the prisoner for an offence of which he has been convicted satisfied these requirements.
26. Article 5(4), on the other hand, is concerned with the need for the detention to be reviewed in order that it may be determined whether it is lawful both in terms of domestic law and in terms of the Convention. Its purpose is to ensure that a system is in place for the lawfulness of the detention to be decided speedily by a court and for release of the detainee to be ordered if it is not lawful. The general rule, as I have said, is that detention in accordance with a determinate sentence imposed by a court is regarded as justified under article 5(1)(a) without the need for any further reviews of the detention to be carried out under article 5(4). The question which Mr Fitzgerald has raised is whether that rule, which undoubtedly applies to determinate sentences imposed under subsection (2)(a), can be applied also to determinate sentences imposed under subsection (2)(b). It was agreed that the answer to it is to be found in the jurisprudence of the European Court of Human Rights, to which I now turn." (emphasis added).
"51. It is plain from this summary that the basic rule which the European Court laid down in De Wilde, Ooms and Versyp v Belgium continues to apply. Where the prisoner has been lawfully detained within the meaning of article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the detention have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary.
52. I would hold that the present case falls within the basic rule. The review which article 5(4) requires was incorporated in the sentence which the judge passed under subsection (2)(b). This is because he fixed the period of the sentence which was needed to protect the public from serious harm. He was able to take this decision in the light of the information before him and, in the exercise of his ordinary powers of sentencing, to decide on the total length of the sentence which in all the circumstances was appropriate. As he was able to take this decision at the outset there is no risk that detention for the minimum period fixed by the sentence will become arbitrary. The appellant has no further right under article 5(4) to have his detention for the minimum period fixed by that sentence reviewed judicially."
"74. In my opinion the jurisprudence of the European Commission and the European Court has recognised that article 5(4) has no application where a prisoner is serving or has served a fixed term sentence such as a sentence passed pursuant to section 2(2)(b) of the 1991 Act .."
"10. That brings one back to consideration of the core rights which article 5(4), read with article 5(1), is framed to protect. Its primary target is deprivation of liberty which is arbitrary, or directed or controlled by the executive. In the present case there was nothing arbitrary about the sentence, which was announced and explained in open court and upheld by the Court of Appeal when refusing leave to appeal against sentence. Since the first offence involved what the sentencing judge described as "a savage attack" and the appellant had threatened further violence against his first victim, the term imposed does not appear in any way excessive. The sentence left nothing to the executive, since the Parole Board, whose duty it is to consider release at the halfway stage of the sentence, is accepted to be a judicial body. Again, May LJ put the point succinctly in paragraph 19 of his judgment:
"Although the sentence is longer than it otherwise would have been because the sentencing judge is of the opinion that it is necessary to protect the public from serious harm from the offender, (i) the length of the sentence is, and is intended to be, determined by the judge at the time of sentence; (ii) it is not intended to be reviewed, other than on appeal; and (iii) in particular, it is not intended to confer on the executive the responsibility for determining when the public interest permits the prisoner's release."
11. I conclude that the sentence passed on the appellant fell squarely within article 5(1) of the Convention and did not attract the operation of article 5(4). On the review of his case by the Parole Board he was entitled to the same rights as any other long-term prisoner serving a determinate sentence, but no other or greater rights. In considering his release at the half-way stage the Board was bound to apply the same criteria to him as to any other long-term prisoner serving a determinate sentence. The suggested analogy between prisoners sentenced under section 2(2)(b) or 80(2)(b) and discretionary life sentence prisoners is in my opinion false."
"22. Before turning to the issues, I think it convenient to summarise certain uncontroversial by fundamental and relevant principles upon which the sentencing, licensing and recall regimes rest. First, the ordinary duty of the court when imposing a determinate sentence of imprisonment is to impose such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it: section 2(2)(a) of the 1991 Act. I need not address the small minority of cases in which a longer than commensurate sentence may be called for: section 2(2)(b) of the 1991 Act. In fixing this term, whether it be measured in days, months or years, the court will take account of all matters relevant to the art and science of sentencing and may, depending on the facts of the particular case, have regard to all the well-known objects of a custodial sentence (retribution, personal and general deterrence, incapacitation, reform, rehabilitation). But the predominant purpose of the sentence will represent the period which the court considers that the defendant should spend in custody as punishment for the crime or crimes of which he has been convicted. An appellate court reviewing the sentence will act on the same basis.
23. Secondly, the court which imposes a determinate sentence of imprisonment is of course aware of the statutory provisions governing early release, and should pursuant to Practice Direction (Custodial Sentences: Explanations)  1 WLR 278 outline the effect of these to the defendants when passing sentence. But save in an exceptional case these provisions do not and should not influence the length of the sentence passed. The court does not sentence a defendant to six years' imprisonment because it judges four years' to be the appropriate term, or three years' because it judges that the defendant should be incarcerated for 18 months."
"28. That brings me to the final point which I should mention. That is the contention that was originally raised by the appellant that the Executive should, as a matter of principle, have no role in the discretionary release of prisoners. Mr Owen on the hearing of the appeal accepted this was not a point which he could argue before us and therefore it is sufficient if I record the position. The point was not argued in the lower court either."
"73. On analysis, I do not indeed consider that the decision or reasoning of the House of Lords in Giles does impinge on, let alone resolve, that issue. What Giles decided is that, where a prisoner is properly convicted, and given a determinate sentence, by a competent court, his right under Article 5(1) and 5(4) not to be deprived of his liberty without a judicial review is exhausted (subject to any right of appeal), because the judicial review has ipso facto taken place at the trial. In other words, the effect of the decision in Giles is that, once a prisoner is "lawfully detained…..following the imposition of a determinate sentence after his conviction by a competent court" there is no right to a further review (subject to the normal appeal process of the courts): see Lord Hope of Craighead at paragraph 51.
75.The fact that Article 5 cannot be invoked to justify a prisoner claiming the right to be granted early release where no early release system exists, does not mean that where an early release system exists it is not within the ambit of Article 5 for the purposes of engaging Article 14 ………
81. In summary, it seems to me that the effect of the decisions in Giles and Smith (No 2) do not call into question the view that, if the legislature introduces an early release system which results in a prisoner being entitled to early release, Article 5 is thereby engaged…." (emphasis added)
"12. The first issue, arising in all three appeals, is whether the appellants' applications for early release came within the ambit of article 5 of the European Convention so as to engage article 14 of the Convention……." (emphasis added)
"42. The differential treatment in Mr Clift's case is the result of the length of his sentence. The question is whether his complaint falls within article 14 of the European Convention….."
"66. The first concerns issue one, whether the appellants' applications for early release came within the ambit of article 5 of the European Convention on Human Rights so as to engage article 14 of the Convention…."
"26. Mr Kovats and Ms Greaney founded their arguments on labelling the seven year sentence passed on Mr Johnson as a "determinate" sentence. In one sense the question is whether his sentence was truly "determinate" in the eyes of the Convention. In none of the cases dealing with determinate sentences has the court been concerned with a situation in which there has been a delay in considering the entitlement of a long term prisoner to parole and it is in that context, and that context alone, that one must consider whether Article 5(4) comes into play." (emphasis added)
"29. One reason why prisoner B has a remedy for a breach of Article 5(4) is because there is a risk, unless the sentence is kept under review, of his sentence becoming arbitrary. That is a general obligation under the Convention. But if there is a delay in hearing the application to the Parole Board of prisoner B, or differences between the times when life sentence prisoners are having their applications to the Parole Board considered, there is a different form of arbitrariness which was recognised by the Court of Appeal in R (Noorkoiv) v Parole Board. So far as delay in an application coming before the Parole Board is concerned, or so far as there being delays from which it follows that different prisoners with determinate sentences are having their hearings before the Parole Board dealt with at different periods of time after their eligibility date, that same arbitrariness is present in the determinate sentence prisoner context. It is that arbitrariness which, in Convention terms, would, in my view, render the sentence unlawful, and falls within the ambit of Article 5(4). There was in this case an unjustified and indeed arbitrary period of delay of eight and a half months. If Mr Johnson can demonstrate that at an earlier consideration by the Parole Board he would have been released, it would seem to me to follow that his detention for some period was arbitrary, unjustified and therefore unlawful. It would furthermore seem to me that under Article 5(4) Mr Johnson was entitled to have his case considered by the Parole Board "speedily" so that his sentence did not become "arbitrary".
The second submission: the SSHD must always accept the recommendation of the Parole Board
The Third Submission; the SSHD may not reject a recommendation of the Parole Board unless the SSHD has fresh material